18/01/2021

The customer is always right… or maybe not…

Kennedys recently secured a finding of fundamental dishonesty under Section 57 of the Criminal Justice and Courts Act 2015 in an injury claim brought by a customer visiting a well-known fashion retailer. The claim was struck out and the claimant was ordered to pay the defendant’s costs, to be enforceable against him. 

This result shows the importance of identifying the right claims to pursue to trial where exaggeration is suspected to be dishonest, rather than a negotiation tactics to secure a better award of damages. It also demonstrates the need to obtain disclosure of contemporaneous records, in order to undermine the claimant’s escalating description of his injuries.

The claim

The claimant was a customer at the defendant’s store. Unfortunately, during his visit, he caught his leg on a plastic box left outside the changing rooms. It was accepted by the store manager that a very minor incident occurred.

The claimant immediately insisted on speaking with a senior member of staff to complain about the incident. An accident report form was completed in the claimant’s own words with the claimant describing himself as being “in pain” and “bleeding”.

A photograph of the injury was taken by the store which showed that, at worst, the incident caused, a little scuff to the skin.

Several months after the incident, the claimant submitted a claim for injury and losses. The store and its insurer were very surprised that a claim had been presented. An early admission of liability was made; however, the nature and extent of the losses were disputed.

Following the admission, the claimant served a medical report documenting the following injuries and losses:

  1. Severe lacerations and pain to the leg with the pain element expected to last 15 months.
  2. A permanent scar.
  3. General anxiety that was also expected to last 15 months.
  4. Losses associated with being unable to work or care for his children for two weeks.

A low settlement offer was made with disclosure of the contemporaneous photograph of the injured leg. The offer was rejected by the claimant who then issued county court proceedings.

The claimant maintained throughout the proceedings that the contents of his medical report were accurate. In his witness statement, he elaborated further and described the impact as being so severe that it left him disorientated and unaware of where he was for five minutes.

The claimant's account of the accident was undermined by the contemporaneous photograph of his injury and the detailed statement of the store manager who was able to recall clearly, the incident and her exchanges with the claimant post-accident. The store personnel felt strongly that the claimant should not be compensated as he was grossly exaggerating his injuries.

We obtained the claimant’s GP records and these were not supportive of an ongoing injury arising out of the accident. The records confirmed that the claimant went to Spain in the prognosis period and felt fine on his return. Part 35 questions were put to the claimant’s expert and the expert conceded that his findings were predicated on the claimant’s honesty at interview. 

Following the exchange of statements, we were satisfied that there was sufficient evidence that the claimant had fraudulently exaggerated the effect of the incident. The claimant was afforded one final opportunity to walk away from the claim on a ‘drop hands’ basis. The claimant rejected the offer and elected to proceed to trial.

The trial

At trial, the claimant stuck to his story but the judge rejected the claimant’s evidence.

The judge held that there was a genuine incident in which the claimant suffered a minor injury. However, the judge was satisfied that the claimant had exaggerated his injury and losses to such a degree his entire claim should be dismissed under section 57 of the Criminal Justice and Courts Act 2015.

The genuine part of the claimant's injury was valued at £600, which was offset against the defendant’s costs. The claimant was ordered to pay the defendant’s costs, to be enforceable against him, and the claimant has now settled the defendant’s costs.

Comment

The key to this success was satisfying ourselves, and then the judge, that the exaggeration of the claim was dishonest. This was a genuine claim, in that the claimant did suffer an injury that was the fault of the store. Case law shows that the courts will tolerate some exaggeration by claimants for the purposes of negotiation but where that exaggeration is so great as to be dishonest, that will fall within the definition of fundamental dishonesty and allow the courts to strike out the whole of the claim and allow defendants to recover their costs. 

Read other items in Personal Injury Brief - February 2021